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First time accepted submitter bpkiwi writes "FBI agents, working with New Zealand police on the Megaupload case, took a copy of Kim Dotcom's hard drives and then immediately sneaked out of the police facility and FedEx'ed them back to the USA. Despite the fact that removal of evidence in this manner without official approval (and a chance for the defendant to challenge it) appears to be illegal, the New Zealand government is now left arguing on a technicality — that the law only covers 'physical' items." Things got slightly better for Megaupload users trying to get their files back today. In a court filing the MPAA said users can have their files back as long as access to copyrighted files is blocked. “The MPAA Members are sympathetic to legitimate users who may have relied on Megaupload to store their legitimately acquired or created data, although the Megaupload terms of use clearly disclaimed any guarantee of continued access to uploaded materials,” MPAA lawyers write.

Wait, the MPAA is claiming the Megaupload EULA/TOS as a reason why people shouldn't get their data back? That's kinda a dick move.

Also, if I was the NZ government, I would be asking FedEx some pretty hard questions. Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

NZ already had a pissing match with USA when they banned [wikipedia.org] US vessels that were either nuclear powered or carrying nuclear weapons from entering their waters. That's still in force today, as are the measures US had taken in response.

it would be tortious interference of contract [wikipedia.org], but because they've bought themselves criminalization of copyright violations, we now have the FBI chasing halfway around the world for stuff like this. Great going, FBI!

here in the united states of skullduggery we DO have something called the chain of custody. by obtaining the materials outside of what is legally acceptable they have violated the chain of custody, and by using a non governmental agency without judicial oversight they have violated the chain of custody. this SHOULD, according to US law, make the hard drives inadmissible as evidence in court proceedings.

First, chain of custody refers to the ability to prove that the materials presented in court were seized by the police at a particular time and place. It is different from the question of whether the means to seize the evidence or move it from one country to another is legal. If someone can attest to the movement of the evidence, then chain of custody is satisfied, even if normal procedures are not followed. Of course, if normal procedures are not followed, then the defense can put that before the finder of fact and argue the evidence is unreliable. But to be admissible, it is only necessary that the prosecution offer evidence to show where and when a particular item was seized.

Moreover, even if the chain of custody was broken, fruit of the poisonous tree would not apply to derivative evidence unless the same chain of custody problem infected that new evidence. So, for example, if chain of custody problems keep a gun from being used, it is still possible in many situations to admit evidence seized under a warrant for which probable cause is supported by that gun. Not always - some chain of custody problems would quash the warrant - but there are many situations where the gun would out but fruits of the warrant would be in.

Hate to bust your bubble buddy but American police as far a New Zealand or any other countries laws are concerned are nothing but bloody tourists. It is illegal to hand over evidence to visting tourists and let them take it out of the country. It even gets more stupid, users can have their files back as long as access to copyrighted files is blocked, WTF! Just because I am not an American and not a member of the RIAA/MPAA/Obama Justice Department club for pigopolists all of a sudden my work is no longer protected by copyright, talk about bullshit. All that work on those drives is protected by copyright, so what the fuck are they talking about, just because a bunch of out of control Fucking Bloody Idiot tourists stole a copy infringing other peoples copyrights doesn't mean that work now permanently loses copyright protection.

Hate to bust your bubble buddy but American police as far a New Zealand or any other countries laws are concerned are nothing but bloody tourists. It is illegal to hand over evidence to visting tourists and let them take it out of the country.

Not sure what bubble you think you're bursting, but I've said exactly *nothing* about whether sending the cloned drives out of NZ was illegal or not. I was speaking about whether doing that will affect the admissibility of the evidence in an American court. Not whether it should, but whether it will.

It even gets more stupid, users can have their files back as long as access to copyrighted files is blocked, WTF! Just because I am not an American and not a member of the RIAA/MPAA/Obama Justice Department club for pigopolists all of a sudden my work is no longer protected by copyright, talk about bullshit. All that work on those drives is protected by copyright, so what the fuck are they talking about, just because a bunch of out of control Fucking Bloody Idiot tourists stole a copy infringing other peoples copyrights doesn't mean that work now permanently loses copyright protection.

It does not appear that the data on the drives shipped via fedex contains files uploaded to Megaupload. The uploaded files was stored on servers in America, and was seized pursuant to a warrant. I'm sure there w

Law enforcement agencies and cooperating entities send evidence via FedEx all the time. It's an accepted mode of transit. As for chain of custody, sorry, you're wrong there too, as long as it was properly documented. As for legally acceptable means of obtaining the materials (in this case, copies of data stored on hard drives, presumably bit-for-bit images of the drive contents), well, they're federal agents who I'm sure signed affidavits attesting to the means utilized to create the copies. Whether or not NZ decides it was okay is up to NZ, but will probably have little to no effect on proceedings in the US.

Now, on to the really important point. Where did you get your legal and/or law enforcement experience? I suspect it may have been a crackerjack box. Sorry, old episodes of Law and Order don't count.

Also, if I was the NZ government, I would be asking FedEx some pretty hard questions. Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

How would FedEx know? You may as well blame Level 3 for illegal export of bits.

FedEx only shipped a box - it's hard to imagine they knew the exact contents.

Also, isn't there a judge in this case? Why the F*** is the MPAA sympathetic to anything?It's not in their realm or authority to limit users to their legitimate data, and acting in thismanner will only garnish more distrust for them. It's not by the grace of MPAA, but the executionof legal principles.

I would be asking FedEx some pretty hard questions. Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

WTF?

So you want FedEx prosecuted in every country for millions of crimes?You seriously want to bust FedEx because they were the shipper?Sure why blame the people shipping shit out of a country illegally when you can just bring down the hammer on FedEx.How did you get an insightful mod with that crap in there?You prosecute the agents or you penalize the country. You don't go after FedEx or UPS or DHL because the agents used them as a shipper.Should FedEx have asked if the hard drives were stolen evidence? Do you think that should be one of the check boxes on the shipping form?I can not fathom how it is possible for you to say that and be smart enough to type. I can only come to the conclusion that you put no thought whatsoever into any part of the drivel that spewed froth from your keyboard.Next time think about what it is you are saying before you hit submit.

The MPAA want to make me and my ISP responsible for what goes across my Internet connection. How is this different from the FedEx example exactly?

And just for the record, I think both are absurb.

However, if I were a customer of megaupload who had copyright material on their servers, I would like to be putting a case for copyright infringement of my work by the FBI in NZ, since they have no legal authority in that jurisdication. And if they have returned to the US after breaking the law, well, NZ will just have to put in a extradition request.

MegaUpload were busted because they "were the shipper".
Sauce, goose, gander.
And surely if the data on the drives is "not a physical object" then surely laws concerning theft and posession are completely inapplicable to it and the whole operation is a bust?

IANAL, but my guess would be they filed papers with the court saying they wouldn't contest the action. It's just makes them sound more ominous and full of themselves to state it as them giving permission.

Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

I can imagine FedEx's response.

"What are you suggesting? That we open every FedEx package we ship out? To check against some kind of real-time up-to-second list provided by the police department for what's already in their evidence locker?

What happens if we don't do that? Are you going to arrest us and freeze all our assets too? Wouldn't it be easier to just put a lock on your evidence locker and carefully vet/punish the people who took out the evidence in the first place? Or at least punish/fire/jail the people who gave them access to that locker? "

Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

I can imagine FedEx's response.

"What are you suggesting? That we open every FedEx package we ship out? To check against some kind of real-time up-to-second list provided by the police department for what's already in their evidence locker?

What happens if we don't do that? Are you going to arrest us and freeze all our assets too? Wouldn't it be easier to just put a lock on your evidence locker and carefully vet/punish the people who took out the evidence in the first place? Or at least punish/fire/jail the people who gave them access to that locker? "

Even if they had opened the package and seen hard drives, to know there might have been a problem they would have had to connect them to computers and read the data off them. It's just not reasonable in the slightest.

"What are you suggesting? That we open every FedEx package we ship out? To check against some kind of real-time up-to-second list provided by the police department for what's already in their evidence locker?

Think of it as a kind of physical 'deep packet inspection'. And if you were an ISP, yes. That's what we'd be having you do once we get our legislation in place.

I think ISPs, cloud services and the like should argue based on a principle of legal equity the next time one of these bills comes up. The Feds aren't rummaging through every UPS package or prying open every mini storage unit on the chance that there's some contraband in there.

Wait, the MPAA is claiming the Megaupload EULA/TOS as a reason why people shouldn't get their data back? That's kinda a dick move.

Also, if I was the NZ government, I would be asking FedEx some pretty hard questions. Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

Have you even once heard of the MPAA doing anything that could not be accurately described as a dick move? I haven't.

Also, if I was the NZ government, I would be asking FedEx some pretty hard questions. Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

To which the response would be, "FedEx does not have a legal duty to randomly open customer's packages, booting hard drives found therein, and telepathically determining if the material on those drives is subject to legal export restrictions."

So how do they know whether or not the files in question are copyrighted? Is the MPAA now going to be the judge of what constitutes infringing material in private files uploaded to a 3rd party? Gee, no conflict of interest there or anything...

Making a copy of something and then taking the copy is not stealing since the original something is still there.

If the content on the hard drive were under a copyright, then making a copy without the permission of the license the content was under or without the permission of the owner of the content is copyright infringement

If the content on the hard-drive was original work in any way, it's copyright is automatically legally owned by, and remains with, the creators (As laid out in the Berne Convention [wikipedia.org]), unless they somehow disown or reassign copyright on those items (though a recording or publishing contract, or any other kind of license, for example). Uploading works (files) to a locker site is not disowning copyright, it is merely granting an exclusive license for the locker site to hold (and potentially "transform") them, not a right to distribute those works to third parties (unless said third parties are explicitly granted access). Thus, the New Zealand Police and FBI (And potentially the MPAA/RIAA as well) are guilty of illegally copying copyrighted works without a license, thus infringing on the copyrights of all the users of MegaUpload.

Therefore, in one fell swoop, the FBI are immediately guilty of 1+ Billion [wikipedia.org] cases of Copyright Infringement, assuming every registered user of MegaUpload uploaded only one original work. If, for some reason, they are not, then neither are the users of MegaUpload guilty, for exactly the same reasons.

Should be interesting to see the US Government wiggle their way out of that one, to be sure.

Thus, the New Zealand Police and FBI (And potentially the MPAA/RIAA as well) are guilty of illegally copying copyrighted works without a license, thus infringing on the copyrights of all the users of MegaUpload.

A New Zealand police officer or an FBI agent who copied those files in order to watch copied movies at home would be committing copyright infringement. But I would think that making copies to collect evidence in a criminal prosecution is allowed by copyright law.

As an example, emails would obviously fall under copyright protection. But even in civil cases, defendants (and plaintiffs as well) are often forced to supply opposing lawyers with copies of those emails, and nobody has ever questioned that for c

I realize you were trying to be funny, that question isn't even relevant because your question should have been "copying without permission of the copyright owner isn't stealing". In this case the FBI did indeed have permission, so your question is irrelevant.

Once the government establishes probable cause that the property is subject to forfeiture, the owner must prove on a "preponderance of the evidence" that it is not. The owner need not be judged guilty of any crime.

Yeah that "fair use" you talk of only applies under US jurisdiction. Here in New Zealand we are a separate country and we have our own laws. So your American FBI can not just come over here and apply your own set of rules in our sovereign country thank you!!

The FBI broke a court order in NZ that stipulated that a further hearing would be required to decide if the FBI where going to be given access at all. They just copied and stole the information without even the NZ Police knowing what they where doing.

Since the police in NZ gave them access to the source media and allowed the tools required (a bare bones PC, more or less) to use something like "dd" to make copies of said source media. Whether or not NZ is happy about the end result doesn't really matter in real life, and will have little effect on proceedings in the US. Feel free to take the issue up with the NZ authorities if you're upset about it, though.

The NZ Police where told by the NZ Court that a hearing was going to have to be conducted before the FBI got to see anything, which the FBI and NZ Police ignored and broke NZ Laws. The FBI did not even ask the NZ Police permission to remove the information, they took it without even the NZ Polices approval.

I think if you read the article again, it's fairly clear these were the HD's from Dotcom's personal computers. The actual Megaupload servers are in Virginia in the US and a location in France. Unless he poached files from Megaupload and stored them on one of his personal HD's, there's no copyrighted material.

Unless he poached files from Megaupload and stored them on one of his personal HD's, there's no copyrighted material.

Anything on those personal hard disks written by DotCom is a work protected by copyright, and that copyright is held by Dotcom. Any email received by Dotcom and stored on those hard disks is a work subject to copyright where the copyright holder is not Dotcom. Any software on those hard disks that was licensed to Dotcom for use on that machine, e.g. Windows, is subject to copyright law and the copyright holder is not Dotcom. To say there is nothing "copyrighted" on those hard disks is to ignore the obvio

Yes, you're right, if you want to stretch a point to the near breaking point. Those copyrighted files are not, however, the files the MPAA wanted. And it's not a big media line, it's the reality that in order to enforce the copyright on those files, especially in light of a federal warrant or indictment (regardless of how they might have been illegally obtained), you better have a rain coat less you end up smelling like a back alley for all of your pissing in the wind. Yeah, you might prevail--five or six y

You do realise that New Zealand is not part of the United States don't you? US law does not apply in New Zealand, where this potential copyright infringement occurred, which is why any remedy would be subject to New Zealand law regardless of how many US court antics go on. You're right, attempting to sue for copyright violation would almost certainly fail probably because of exemptions in NZ copyright law for law enforcement or "public good" (I do not profess to know NZ law BTW) but that does not justify

You do realise that New Zealand is not part of the United States don't you? US law does not apply in New Zealand...

That's just an imminent free trade agreement away.

In return for NZ being allowed to sell a couple of shipping containers full of cheese and lamb chops to US supermarkets, NZ will cede all sovereignty and law making to US drug companies, movie studios, record labels and patent trolls.

A police officer can't break into your room to steal cocaine as evidence against you. Sure, you're breaking the law, but so did law enforcement.

Yeah. (Oh, and I don't see anyone here regularly saying "there's nothing at all wrong with downloading movies for free", troll. In fact, most posters agree to some degree about copyright. What we have problems with are the specifics of the laws, the methods used to enforce them, and the double standard in

A police officer can't break into your room to steal cocaine as evidence against you.

What makes you say that? I don't see any reason why they can't. Perhaps you meant that they are not supposed to break into your house. In theory. In practice they can easily get away with doing so. And they don't need your cocaine. They can plant their own. Or shoot you in the face and then plant their own. The whole reason they became cops is to be able to do stuff like that and get away with it.

A police officer can't break into your room to steal cocaine as evidence against you.

What makes you say that? I don't see any reason why they can't. Perhaps you meant that they are not supposed to break into your house. In theory. In practice they can easily get away with doing so. And they don't need your cocaine. They can plant their own. Or shoot you in the face and then plant their own. The whole reason they became cops is to be able to do stuff like that and get away with it.

I may be wrong, but I believe them breaking into your house to steal evidence counts as "fruit of a poisoned tree." [wikipedia.org] If they do, it and you can prove it, their case is completely destroyed.

You are correct. If you can prove it. Not just that he broke into your house, but that he had no "valid" reason to do so. Keeping in mind that whatever he says is presumed to be true by nearly all judges and most juries and whatever you say (assuming he let you live) is presumed to be a desperate lie to save yourself from going to jail. If you weren't alone your friend/roomate/girlfriend will be considered biased and lying for you. The only way to beat a lying cop is to catch it on video and not let the video get confiscated. Or be lucky enough to have the event witnessed by someone you don't know and can later find to testify on your behalf. That still is no guarantee because the cop will have buddies who are also willing to testify to his version of events.

A police officer can't break into your room to steal cocaine as evidence against you. Sure, you're breaking the law, but so did law enforcement.

Yeah. (Oh, and I don't see anyone here regularly saying "there's nothing at all wrong with downloading movies for free", troll. In fact, most posters agree to some degree about copyright. What we have problems with are the specifics of the laws, the methods used to enforce them, and the double standard in which they are enforced.)

Random thought: Wouldn't it be hilarious if NZ uses this as a justification to declare a mistrial and throw the whole thing out? After all, Dotcom's civil rights have been disgustingly violated -- not only in this instance, but his valid, legal business was intentionally destroyed to make a political point (namely: "We don't need SOPA to ruin your lives, nerds").

There also were the rather convincing arguments that the whole thing was actually a ploy to make sure Megaupload didn't branch out into the Musi

When the revolution comes, MPAA's CEO and the managers under him should be in the line for beheading. (Or we could just pass a constitutional amendment that corporations don't have human rights and are not a fictional "person" under the law.)

...corporations don't have human rights and are not a fictional "person"

I agree, but I like the beheading idea better. You could even do a ventriloquist act with the severed head to please the angry mob: [moving chin up an down] "Hey kids! Copying that file is bad, m'kay?"

An actual altering of the magnetic particles on the disk between 1 and 0 states.So it is a physical item. Lots and lots and lots of them. Billions of bits worth of physical items.

What seems to cover this would be say copyrights. And everyones all hard-on for defending copyrights these days...So the goverments and riaa/mpaa/whoever broke the ONE rule they expect the rest of us to follow.. Not breaking peoples copyrights and illegally copying data.

One of the reasons for the law about shipping evidence out would be to make sure the evidence isn't lost or modified. So in this case the physicality of the data actually is relevant and the law may make sense.

One of the reasons for the law about shipping evidence out would be to make sure the evidence isn't lost or modified. So in this case the physicality of the data actually is relevant and the law may make sense.

The data was copied, not lost or modified.

I have no doubt that the copy cannot be used in court, but I also have no doubt that the original can If the FBI finds anything in their analysis of the copy they'll tell the kiwis where to look in the original and the original will be used in court. In fact, it is documented practice for forensic analysts to make a copy of the device they are studying just so that the defence cannot claim that the original was modified during the examination.

This article puts quite a different spin on it,
http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10811266 [nzherald.co.nz]
From the article:
"He said he had contacted the agents to offer to take clones of the items to the United States Embassy only to find they had already sent the clones to the US."
Sounds like the NZ cops were going to give it to the FBI but the FBI wasn't waiting from permission anyway.

With that sort of circumvention in procedure in mind, I no longer think this is about massive amounts of infringed movie files. This is about something else. The US Government doesn't make this many mistakes, and purposefully fuck up this much procedure, especially Internationally and very publically, unless they're using this farce as a distraction for one reason or another.

To me, it's one of these scenarios:

1) They're purposefully screwing up procedure, and international treaty in the name of copyright in

It's much more likely that there's no conspiracy and it's just fuck ups all the way down. The FBI doesn't regularly (compared to other crimes) investigate foreign cases of copyright infringement, hence the lack of internally well-known procedures, which leads to mistakes. When the policing of infringement cases have become routine, then there'll be a well understood protocol and these mistakes won't happen. The MPAA probably have used their influence to push the case, but given their incompetence at runn

FedEx aided in copying data illegally. FedEx should have filters in place blocking any illegal items (or data) from passing through their services, thus stopping companies and people from breaking the law./SARCASM

Flee the country... yeah right.
How? With a fake passport? If it's that easy for anyone with money to get on an international flight undetected wouldn't there be a few more terrorist attacks?
It's not like hes hard to spot either, a 7 foot tall 4 foot wide guy with an accent and a tiny asian wife next to him..

The FBI has made illegal copies of copyrighted material owned by Kim Dotcom and exported the illegal copies to USA. Arrest the FBI for copyright infringement and FedEx for smuggling illegal counterfeits

...because all copyrightable material is under copyright from the moment of its creation. That would include all original works, all writings, etc... they're copyrighted, and the creator owns the copyright.

What MPAA wants to disallow is in bold...

"If the Court is willing to consider allowing access for users such as Mr. Goodwin to allow retrieval of files, it is essential that the mechanism include a procedure that ensures that any materials the users access and copy or download are not files that have been illegally uploaded to their accounts."

To that, I'll add "allegedly illegally uploaded." The court as a finder of law can't determine that the files were illegally uploaded; a finder of fact (jury) needs to do that.

If the evidence had been paper documents and the NZ police had let the FBI take xerox copies back to the USA would you say that they took evidence out of the country? The actual evidence --the actual, original drives-- is still in NZ. No evidence was made unavailable to the defense. I oppose criminal prosecution for copyright infringement, but let's try not to invent bogus outrages. The real ones are quite sufficient.

While it's unlikely that any FBI agents would face charges of contempt of court, judges don't like being lied to, or having their orders ignored. Given the FBI's behaviour, I wouldn't be too surprised if the judge denied the extradition request solely on the basis of the actions of the FBI.

In short, the FBI are acting like arrogant bullies and they are going to destroy their own case.